Case Law Details
Assessee has not made out a case for total waiver of pre- deposit and keeping in view the total facts and circumstances of the case, we direct the assessee to deposit an amount of Rs.1,00,000/- (one lakh) within a period of four weeks from today and on such deposit, pre- deposit of the balance amount of Service Tax and penalty shall stand waived and recovery thereof stayed pending the appeal. Failure to comply with this direction shall result in vacation of stay and dismissal of appeal without prior notice.
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
SOUTH ZONAL BENCH, CHENNAI
Application No. ST/S/229/2009
Appeal No. ST/380/2009
Arising out of the Order-in-Revision No.34/2009 Dated: 27.3.2009
Passed by the Commissioner of Service Tax, Chennai
Date of Decision: 27.09.2010
M/s JERRY & CO.
Vs
COMMISSIONER OF SERVICE TAX, CHENNAI
STAY ORDER NO. 468/2010
Per: Jyoti Balasundaram:
We have heard both sides on the application for waiver of pre- deposit of Service Tax of Rs. 3,36,241/- and penalty of Rs. 3,40,000/-. The demand arises as the result of inclusion of reimbursable expenses in the asses sable value.
2. First submission of the learned Counsel for the assessees is that M/s Jerry & Co., a partnership firm was dissolved and therefore, notice should have been issued to all the partners of the partnership firm and the demand cannot be recovered from only one firm of partner namely M/s Jerry & Co., the main partner. However, we find that the Commissioner in Order-in-Revision has recorded that the firm was dissolved in December, 2006 and the assets and liabilities of the firm were taken over by A. Joseph Vincent, under sole proprietorship. Therefore, this argument does not find prima facie favor with the Bench. As regards the issue on merits although the learned Counsel submits that out of pocket expenses are eligible for exclusion from the gross amount, the expenses incorrect being in the nature towards sales promotion activities, liaison infrastructure facilities etc. cannot prima facie be termed as out of pocket expenses and are essential and integral part of the service provided.
3. In the light of the above discussion, we hold that the assessee has not made out a case for total waiver of pre- deposit and keeping in view the total facts and circumstances of the case, we direct the assessee to deposit an amount of Rs. 1,00,000/- (one lakh) within a period of four weeks from today and on such deposit, pre- deposit of the balance amount of Service Tax and penalty shall stand waived and recovery thereof stayed pending the appeal. Failure to comply with this direction shall result in vacation of stay and dismissal of appeal without prior notice.
4. Compliance is to be reported on 22.11.2010).
(Dictated and pronounced in open Court)
